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07/25/2014

McDonnell Trial: Who’s really on trial?

By Paul Goldman

Editor's note:Paul Goldman is a guest columnist for DecisionVirginia.com. The views expressed below are his own and do not necessarily reflect the opinions of NBC12.

The McDonnell trial story in today’s Richmond Times-Dispatch highlights an issue purposely avoided in the Virginia media, so far: what is a just result when the government, with good intentions, is seen by the jury as going too far in pursuit of a defendant?

Notice the key phrase: “with good intentions.” I have absolutely no doubt federal prosecutors are sincere in their pursuit of the McDonnells, but could this passionate belief in the righteousness of their cause create a backlash among jurors?

“I represent the government without passion or prejudice,” declares actor Kevin Bacon playing the prosecutor in the fabulous movie A Few Good Men.

Given the politics attendant to this trial – a very partisan Democratic Attorney General and a once rising GOP national star – the possibility of prejudice has received much attention. As the saying goes in politics, there is no way to disprove a negative.

But in order for there to be prejudice, the prosecution must act in bad faith. I reject that out of hand.

However, a prosecutor can have the best of motives yet cross the passion line without realizing it. To a juror, this can equate to a form of prejudice.

Mr. Williams is the star accuser for the government’s case, having himself been compelled to testify against the governor. In exchange for such testimony, he has been granted a seldom given "transactional immunity." The government promised not to prosecute him for crimes even if the prosecution already had persuasive evidence of guilt. Presumably, the federal prosecutors are only asking Judge Spencer to give Ms. Jerri Fulkerson the less expansive “use” immunity. This allows the government to compel testify by promising only not to use her testimony in any way to get a conviction against her in the future.

Making this motion on the last business day before the trial begins forces an honest commentator to ask: Has the Bacon equation been breached? .

The RTD’s top political reporter, Andrew Cain, reveals the government wants Ms. Fulkerson to discuss the following email she sent to the confidential assistant for McDonnell cabinet member Bill Hazel, the Secretary of Health and Human Resources:

“Jonnie will be the only one attending the meeting,” Fulkerson wrote. “Jonnie spoke with the Governor recently about a new product that Star Scientific, Inc. is developing that has the potential to save Virginia citizens money on health care. The Governor told Jonnie he needs to speak to Dr. Hazel in reference to this.”

This email was sent on November 4, 2010, but, according to the indictment the alleged corrupt scheme between McDonnell and Williams -- the former promising to do “official acts in exchange for the CEO’s $165000 in cash, loans and gifts -- didn’t begin until April of 2011.

There isn’t a politician in America who considers arranging this meeting, or the meeting itself, to be criminal conduct, much less public corruption including reform advocates like myself who have fought against our “pay to play” system.

I don’t know Ms. Fulkerson, but I assume she was simply doing her job, the same for Secretary Hazel’s team, including the Secretary himself. They answer to bosses and the big guy wanted a meeting.

This isn't criminal corruption by any reading of the law. Why? Because in order to commit a crime, you need a certain “mens rea," the proverbial “guilty mind.” By the indictment’s plain facts, even the government isn’t saying it was part of the crimes alleged.

Bottom line: What happens if the jury comes to believe the prosecutors are a little less Mother Teresa and a little too much Captain Ahab?

In that case, it will no longer be the McDonnells on trial, but the federal government.